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U.S. v. CRUMPLER

June 10, 1986

UNITED STATES OF AMERICA, PLAINTIFF,
v.
BENJAMIN LEGON CRUMPLER, DEFENDANT.



The opinion of the court was delivered by: Allen Sharp, Chief Judge.

MEMORANDUM AND ORDER

I.

A.

The double jeopardy clause of the Fifth Amendment of the Constitution of the United States protects against a second prosecution for the same offense after acquittal.

In this case the original indictment was filed on July 7, 1983 and the full indictment is marked Appendix A *fn* and is attached hereto and incorporated herein.

On June 7, 1985 a superseding indictment was filed in this case in five counts charging only Benjamin Legon Crumpler and is attached as Appendix B.*fn* (It was conceded in open court by counsel for Crumpler that Counts IV and V of the superseding indictment filed on June 7, 1985 in this case were not subject to dismissal on double jeopardy grounds.)

The defendant, Benjamin Legon Crumpler, was also charged in an indictment filed in the Central District of Florida at Tampa on July 26, 1984 and is attached as Appendix C.*fn* There was a superseding indictment to correct only typographical errors in Tampa of which this court is familiar and that indictment is attached hereto, marked Appendix D,*fn* for purposes of clarity.

The salient fact in this case that creates the double jeopardy argument of the defendant is this defendant's acquittal of the superseding indictment in Florida on May 21, 1985. He now argues here that the double jeopardy clause prohibits the prosecution of Counts I, II and III of the superseding indictment filed in this case.

A facial examination of the indictment upon which this defendant was acquitted in Florida and the indictment upon which he is currently charged in this district fails to reflect a double jeopardy preclusion.

In spite of this court's repeated requests and admonition both the defendant Crumpler and the United States of America, for reasons best known to each of them, declined to put before this court a transcript of the evidence in the case tried in Tampa, Florida. It is this court's belief that such failure must be primarily charged to the defendant since the defendant had the burden of proof on the double jeopardy issue in the hearing before this court. Nonetheless its absence presents serious problems to the proper disposition of this double jeopardy issue at this time.

Given this record with its apparent deficiencies this court must attempt to sort through the facts presented to determine whether in fact the present prosecution is for the same offense for which this defendant was acquitted in Tampa, Florida. The difficulty inheres in the nature of the offense and not in any conceptual problems with the double jeopardy clause. The application of the double jeopardy clause is clear and the kind of conceptual problems that are reflected most recently in United States v. Jefferson, 782 F.2d 697, (7th Cir. 1986) are not here present. The problem inheres in the factual nature of conspiracy and continuing criminal enterprise offenses. The court must make an extensive dissection of the factual record in this case before proceeding to the necessary conclusion under the Fifth Amendment of the Constitution of the United States.

Defendant was earlier charged in an indictment by the Southern District of Indiana in the mid-seventies. He fled the country and remained a fugitive until his arrest June 1, 1984.

On July 7, 1983, a United States Grand Jury, sitting in the Northern District of Indiana returned an indictment (hereinafter Indiana Indictment) against Benjamin Legon Crumpler (hereafter defendant). Forty other defendants were indicted as well.*fn1 Defendant was charged in Count Three with a violation of 21 U.S.C. § 952(a), 963, conspiring to import marijuana and cocaine into the United States, and in Count Four with a violation of 21 U.S.C. § 841, 846, conspiring to distribute and possess with the intent to distribute marijuana and cocaine. The dates on the original Indiana indictment read as follows: "Beginning during the early summer of 1977, the exact date being unknown to the Grand Jury, and continuing thereafter up to or about January 20, 1983, in the Northern District of Indiana and elsewhere." A superseding indictment was returned against the defendant on June 7, 1985, charging him in five counts: Count 1 charges him with a violation of 21 U.S.C. § 848, operating a Continuing Criminal Enterprise (hereafter CCE); Count 2 with a violation of 21 U.S.C. § 952(a), 963; Count 3 with a violation of 21 U.S.C. § 841(a)(1), 846; Count 4 with a violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; Count 5 with a violation of 18 U.S.C. § 1952, 2. The dates alleged in the superseding indictment read as follows: "From in or about March, 1978, and continuing thereafter up to and including in or about January, 1981, the exact dates being unknown to the Grand Jury, in the Northern District of Indiana and elsewhere." On June 11, 1985 defendant was arraigned on the superseding indictment and pled not guilty to all counts.

The defendant had also been indicted on July 26, 1984 by the Middle District of Florida (hereafter Tampa indictment) wherein he was charged with a violation of 21 U.S.C. § 848, CCE, as well as 21 U.S.C. § 841(a)(1), 846, 952, 963 and 18 U.S.C. § 2. Defendant was acquitted of all charges there on May 21, 1985. The time frame in the Tampa indictment read as follows: "On or beginning in or about the month of February, 1982, and continuing thereafter up to and including August, 1983, in the Middle District of Florida, and in diverse other districts," this defendant and others did engage in a CCE.

The defendant challenges the charges in the Indiana indictment alleged in Counts 1, 2, and 3 on the basis of double jeopardy. Defendant does not here contend that Counts 4 and 5 are impacted by the court's ruling on his Motion to Dismiss as Barred by Double Jeopardy.

This court held an evidentiary hearing on defendants' Motion to Dismiss. This court must decide this issue based solely on the record before it which includes all pleadings, affidavits, and the evidence adduced during that evidentiary hearing. This court does not have before it a copy of the transcript of the Tampa trial since neither side deemed it important enough to their case. Suffice it to say, that transcript is not before this court for the determination of the issue of double jeopardy.

At the evidentiary hearing, the defendant testified at great length on his own behalf and he called Jerome Frese, the former Chief Assistant United States Attorney involved with the Indiana indictment and prosecution in support of his motion. In opposition to the motion the government presented the following witnesses: Delbert Woodburn and Ernest S. Jacobsen, Chief Investigators from the Tampa indictment; William Tipping, Shelly White, George Anthony (Tony) Hicks (hereafter Tony Hicks) and Charles Kehm, all named as co-conspirators from the Indiana indictment. The parties have also entered into several stipulations.

It is the defendant's contention that all of his illegal smuggling activities from 1977 to 1983 was part of one overall scheme, a single overreaching conspiracy to smuggle and distribute drugs in the United States. The defendant testified to his massive participation and involvement in the crimes charged in the Indiana and Tampa indictments. However, he claims that the government was not aware of all of his activities. He contends that his organization and its overall plan to distribute and smuggle drugs to the United States continued in substantially the same form the entire time from 1977-1983 but for the shifting cast of players (the individuals participating in the activities)

B.

The following is a more specific summary of the facts before this court.

The defendant testified that he was involved in 25-30 overt acts giving rise to the charges in the Indiana indictment and in 10 overt acts giving rise to the charges in the Tampa indictment.

At different times under different agreements, with different objectives became involved with and associated with the following various individuals and their organizations for smuggling purposes: John Sharp, John Eddie, Thomas Fife, Ronald Markowski, John Arnold, Frank Brady, Stafford Morrison, Bill Baron, Charles Kehm, Norman Williams, and Francisco (Paco) Riveroll.

In March of 1978, Defendant was approached by a Hiram Aaron regarding an airplane for hire. Aaron introduced defendant to Julio Guell, a mechanic operating out of Miami, Florida, who then introduced defendant to Ronald Markowski (hereinafter Markowski). Markowski agreed to serve as a pilot for the defendant in a smuggling venture of 1200 pounds of Colombian marijuana. Markowski also introduced defendant to Charles Smith, another pilot. Other individuals involved in the venture were: John Arnold, Thomas Fife, John Eddie, and Charles Smith. This incident comprised the facts alleged in the first overt act of the Indiana indictment. The aircraft used was the Beach D18. Markowski then developed his own organization and joined forces with the defendant as a partner. The two entered into a partnership agreement to smuggle Columbian marijuana into the United States.

Markowski then introduced the defendant to Bill Baron (hereinafter Baron) and Baron's organization joined in with Markowski and the defendant in the fall of 1978. In 1979 Baron and the defendant had a falling out after a smuggling venture in which $500,000 came up missing and they quit their partnership. However, while smuggling together, Baron, Markowski, and defendant, their objective was to smuggle Colombian marijuana into the United States through the Bahamas. During their smuggling ventures, the three of these individuals were involved with bribing Bahamian officials through a Nassau Attorney, Nigel Bowe. The bribery was to secure bond and dismissal of charges against individuals arrested in connection with drug smuggling, release of boats or aircraft confiscated, and to secure passage through the Bahamian area during the smuggling operations (i.e. the arrest of several persons at Green Cay, Bahamas, involving a boatload of marijuana). The bribery also was to secure the use of airstrips for refueling purposes.

The defendant testified that his role during his partnership with Baron was to secure the marijuana in Colombia and ship it to Baron for the offloading.

After Baron and defendant ended their partnership, Markowski and defendant became partners and they formed a bogus company, named Marlowe Internation, (for Terry Lowe, the defendant's alias at the time, and Ronald Markowski) with the aid of Florida Attorney Steven Greenburg. The bogus company had a fictitious president named Mitch Aspra. George Anthony (Tony) Hicks (hereinafter Hicks), an individual who worked with the defendant during this time period signed the legal documents as president, using the name, Mitch Aspra. The Company was then used to purchase an airplane for smuggling purposes, and a bogus lease was made to non-existent individuals, in order to reclaim the aircraft in the event it was ever confiscated by the authorities. The sole purpose of the Markowski and defendant partnership was to smuggle Colombian marijuana into the United States. Other key participants with Markowski and defendant included: Tony Hicks, Steven Greenburg, John Sharp, Charles Kehm, Bill Tipping, Bob LeRoy, Charles Rewis, and Danny Bryant. Defendant testified that he organized, supervised and managed the obtaining of the marijuana, securing the landing, the landing site in Colombia and distributing the marijuana in the states to the salesmen.

Defendant was introduced to Stafford Morrison, another smuggler with an organization, in September of 1980, and began a partnership with him. Morrison and the defendant planned a smuggling venture of 18,000 pounds of marijuana from Colombia on a trawler named the Adventurer. Most of the proceeds from this venture ended up in the hands of law enforcement officers during any incident with a rental car in January 1981, which caused the eventual end of the Morrison-defendant partnership.

Markowski had come back in September 1980, and planned another trip with defendant involving Morrison (who Markowski said he did not trust) to smuggle 1800 pounds of marijuana. Markowski and defendant had another falling out which ended their partnership.

The Colombian sources which defendant utilized during all of these smuggling ventures were Moises and Danielle Andrews, predominately as well as Carlos Alarte, Marcos Alarte and Roberto Peinado. The purpose of each of these ventures was to smuggle marijuana from Colombia through the Bahamas into the United States. The locations used during these ventures varied at times and included: Cat Island, Samson Cay, Caicos Island, Great Exuma, Ben Hill County, Georgia, Cat Cay, Fort Lauderdale, Florida, Martin County, Florida, Colombia, South America, Bahamas, Ft. Myers, Florida, Immokalee, Florida, Green Cay, Island of Bimini, Lake Okeechobee, Florida, Long Cay, and Andros Island.

The vehicles used by the defendant and his co-conspirators from March 1978 through January 1981 included: Aztec aircraft 808P; Rio Grande-freighter; and several cigarette boats; Coral Star-fishing vessel (originally named the Peola); Cessna 310; Cessna 402; Bell Jet Ranger Helicopter; Beach Baron Piper Aztec; Hairy Cary, 32 foot carrier; Adventurer, trawler (later renamed the Grande Celeste), 38 foot scarab boat; Dolly Dimple, 36 foot lobster boat.

Defendant then testified to about 6 smuggling ventures which he claims were unknown to the government and through which he attempts to establish the overlap between the involvement of the co-conspirators in the Indiana indictment with the co-conspirators of the Tampa indictment.

Defendant met Norman Williams in a social setting in 1979. Then on Christmas Day in 1980, a boat smuggling Jamaican marijuana owned by Norman Williams became stranded near Samson Cay in the Bahamas. Defendant responded to a stress call from the boat and decided to assist them in finding safety and in unloading the marijuana. This incident later became referred to as the "chicken coop" incident. The marijuana had been stored in a chicken coop and subsequently stolen by local inhabitants. The smuggler lost most of the marijuana. After this incident, Williams and defendant became smuggling partners. Morrison, Williams and defendant engaged in smuggling activities together for a short period of time before Morrison quit smuggling with the defendant in 1981.

It was in the early part of 1981 when defendant went to California and met one San Francisco Bob in an effort to make arrangements for new smuggling ventures.

There were several attempts, both successful and unsuccessful, which involved the smuggling of Colombian cocaine, and Jamaican marijuana, from their respective locations, which involved various agreements, for various smuggling ventures, at various times. Other individuals conspiring with defendant during these smuggling ventures and serving in various capacities from February 1982 through August of 1983 were: Dickey Lynn, Norman Williams, Francisco (Paco) Riveroll, Joe Resch, Ricou DeShaw, Russ Morris, Jimmie Boyd, Fred Jenner, Parker Priest, Walter Moyihan, Richard Kniffen, Wanda Kniffen, Jack Kartee, Kevin Seehan, Buddy Ellis, Claude Denise and Richard Knauer.

The vehicles used during the smuggling ventures from February 1982 through August 1983 were: 26 foot Ramoni boat; 30 foot Island Hopper; Westwind, a trawler with secret compartments; several speed boats; Cessna 182; Aztec, N550US; Cessna 206; PBy plane and two new aircraft.

The locations used during this time period included: Mongego Bay, Jamaica; Florida Keys; South Miami, Florida, Bance, Colombia, Dade County, Florida; Ft. Myers, Florida; and Cancun, Mexico.

The objective of the conspirators involved with the Tampa indictment was the smuggling of Colombian cocaine and Jamaican marijuana into the United States. The main sources of these drugs were Francisco (Paco) Riveroll and the Ochoa family. The conspiracy in the Tampa indictment and the smuggling ventures involved therein did not depend on the bribery of Bahamian officials since the Bahamas were used only infrequently and the conspirators had made the conscious decision to smuggle cocaine predominately instead of marijuana since it was more profitable and was easier to smuggle. The events of smuggling between February 1982 and August 1983 were carried out by airdropping.

Further testimony included defendant's admission that guns (i.e. Mach 10) were used during the smuggling ventures. He further testified that he had (in rough estimate) grossed about 25 million dollars, which included the successful importation of approximately 150,000 pounds of marijuana and 1100 kilos of cocaine into the United States.

II.

The Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), has set forth succinctly the three separate constitutional protects guaranteed by the Fifth Amendment of the Constitution against double jeopardy. The Court held those three protections to be (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. North Carolina v. Pearce, supra at 717, 89 S.Ct. 2076. See also, Poland v. Arizona, ___ U.S. ___, 106 S.Ct. 1749, ___ L.Ed.2d ___ (1986).

Where successive prosecutions are at stake, the guarantee serves a "constitutional policy of finality for the defendant's benefit," Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221 at 2225, 53 L.Ed.2d 187 (1977) citing United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Brown v. Ohio, supra 97 S.Ct. at 2225. The Brown Court further stated at 432 U.S. 165, 97 S.Ct. 2225:

  Because it was designed originally to embody the
  protection of the common-law

  pleas of former jeopardy, see United States v.
  Wilson, 420 U.S. 332, 339-40, 95 S.Ct. 1013,
  1019-1020, 43 L.Ed.2d 232 (1975, the Fifth Amendment
  double jeopardy guarantee serves principally as a
  restraint on courts and prosecutors. The legislature
  remains free under the Double Jeopardy Clause to
  define crimes and fix punishments; but once the
  legislature has acted courts may not impose more than
  one punishment for ...

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